92 Decision Citation: BVA 92-19421
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-07 946 ) DATE
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THE ISSUES
1. Entitlement to an increased evaluation for
post-traumatic stress disorder, rated as 70 percent
disabling.
2. Entitlement to a total evaluation based on individual
unemployability due to the service-connected disabilities.
REPRESENTATION
Appellant represented by: Department of Veterans Service,
Georgia
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) from a rating decision of the Department of Veterans
Affairs (VA), Regional Office (RO) in Atlanta, Georgia. The
veteran performed active honorable service from February
1969 to February 1971. An April 1991 rating decision
assigned a temporary total evaluation based on hospital
treatment for post-traumatic stress disorder effective from
August 7, through August 31, 1990; and reinstated the
previous 70 percent evaluation for post-traumatic stress
disorder effective September 1, 1990. The notice of
disagreement with the above determination was received later
in April 1991. A May 1991 rating decision continued the
70 percent evaluation for post-traumatic stress disorder and
denied a temporary total evaluation based on hospital
treatment for post-traumatic stress disorder in March 1991.
A statement of the case was issued on June 14, 1991. A
hearing was held before a hearing officer at the RO in July
1991. In a January 1992 decision, the hearing officer
continued the 70 percent evaluation for post-traumatic
stress disorder. A February 1992 rating decision continued
the 70 percent evaluation for post-traumatic stress
disorder, 10 percent evaluation for tinea corporis and
cruris, and denied entitlement to a total compensation
evaluation based on individual unemployability. A
supplemental statement of the case was issued on
February 26, 1992. A substantive appeal was received on
March 17, 1992. The representative, Georgia Department of
Veterans Service, submitted a written argument on the
veteran's behalf in April 1992. The case was received and
docketed at the Board in May 1992.
The issues for appellate consideration have been expanded to
include entitlement to a total evaluation based on
individual unemployability due to the service-connected
disabilities in view of Akles v. Derwinski, 1 Vet.App. 118
(1991); Myers v. Derwinski, 1 Vet.App. 127 (1991); Karnas v.
Derwinski, 1 Vet.App. 308 (1991); EF v. Derwinski,
1 Vet.App. 324 (1991); and Douglas v. Derwinski,
2 Vet.App. 103 (1992).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in
continuing the 70 percent evaluation for his post-traumatic
stress disorder. He argues that his post-traumatic stress
disorder is more disabling than currently rated, and has
rendered him unable to work, thereby warranting a total
evaluation.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. § 7104
(1992), following review and consideration of all evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
assignment of an increased evaluation for post-traumatic
stress disorder, and that the record supports assignment of
a total evaluation based on individual unemployability due
to the service-connected disabilities.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. Post-traumatic stress disorder is productive of not more
than severe social and industrial impairment.
3. The service-connected disabilities, when evaluated in
association with the veteran's educational level and
occupational background, have rendered him unable to perform
all kinds of substantially gainful employment.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation in excess of
70 percent for post-traumatic stress disorder have not been
met. 38 U.S.C. §§ 1155, 5107(a) (1992); 38 C.F.R.
§§ 3.321(b)(1), Part 4, 4.7, Code 9411 (1991).
2. A total evaluation based on individual unemployability
due to the service-connected disabilities have been met.
38 U.S.C. §§ 1155, 5107 (1992); 38 C.F.R. §§ 3.340, 3.341,
Part 4, and 4.16 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We have found that the veteran's claims are plausible and
therefore "well-grounded" within the meaning of 38 U.S.C.
§ 5107(a) (1991). We are also satisfied that all relevant
facts have been properly developed and that no further
assistance to the veteran is required in order to comply
with our statutory duty to assist him in a development of
facts pertinent to his appeal. Jolley v. Derwinski,
1 Vet.App. 37 (1991); Murphy v. Derwinski, 1 Vet.App. 78
(1990); Littke v. Derwinski, 1 Vet.App. 90 (1990); Green v.
Derwinski, 1 Vet.App. 121 (1991); and Seavey v. Derwinski,
U.S. Vet.App. No. 90-1484 (February 6, 1992).
I. Increased Evaluation for Post-traumatic Stress
Disorder, Rated as 70 percent Disabling
The veteran performed active service during the Vietnam Era
and was treated for combat fatigue while in Vietnam. His
decorations include a Vietnam Service Medal with two Bronze
Service Stars and a Vietnam Campaign Medal with a
60 device. An April 1985 special psychiatric examination by
the VA concluded in a finding of post-traumatic stress
disorder. The examiner reported that the veteran was
depressed, under tension, and periodically almost tearful as
the result of personal life-threatening stressors to which
he was exposed in connection with combat service in
Vietnam. Recently he had become increasingly preoccupied
with his Vietnam experiences. While he had had some problem
with employment, he had maintained his current job. The RO
granted entitlement to service connection for post-traumatic
stress disorder with the assignment of a 10 percent
evaluation when they promulgated a rating decision in August
1985. A special psychiatric examination conducted in May
1986 disclosed that the veteran had been having employment
and domestic problems, and described an isolated personal
lifestyle. His June 1987 examination confirmed his ongoing
symptomatology associated with post-traumatic stress
disorder. He reported that he broke out in tears for no
apparent reason. He had recently lost his last job, but had
obtained part-time employment. He had difficulties on the
job and at home. The May 1988 special psychiatric
examination report shows that the veteran described
increasing psychiatric symptomatology associated with
post-traumatic stress disorder. He required inpatient care
for post-traumatic stress disorder in early 1989.
The veteran was hospitalized by the VA for treatment of
post-traumatic stress disorder in August 1990. He related
significant problems with emotional control such as
outbursts at home. He stated that he felt he was walking
through the jungle waiting for an ambush to happen. He
complained of increasing insomnia with frequent early
morning awakening and increased nightmares about combat in
Vietnam. His attendant examiner noted that he had presented
with chronic post-traumatic stress disorder symptomatology
with a subacute exacerbation. His examiner considered him
unable to work. The veteran again required hospitalization
for treatment of post-traumatic stress disorder at the VA in
March 1991. He described similar symptomatology which had
been previously furnished and which had apparently become
more acute since the start of the war in the Persian Gulf.
He specifically reported an exacerbation of flashbacks,
nightmares, and visual as well as auditory experiences of
people and voices related to Vietnam. The special
psychiatric examination conducted by the VA in August 1991
shows that the veteran again described persistent
symptomatology associated with post-traumatic stress
disorder, depression, unemployment, inability to get along
with anyone, social avoidance, etc.
As fact finder in the veteran's case, we are statutorily
required to weigh and analyze all the evidence of record.
Sanden v. Derwinski, 2 Vet.App. 97 (1992). Inherent in our
statutory obligation to analyze the record is an obligation
to assess the credibility to be accorded to the veteran's
statements, both oral and written, pertaining to the
severity of his post-traumatic stress disorder. O'Hare v.
Derwinski, 1 Vet.App. 365 (1991), and Ferguson v. Derwinski,
1 Vet.App. 428 (1991). As to the veteran's statements,
assertions, contentions, and arguments that his
post-traumatic stress disorder symptomatology remains
persistent and severely disabling, we have no reason to
doubt his credibility. Nonetheless, as to his arguments,
both oral and written, that post-traumatic stress has
increased in severity as to produce total impairment, the
evidentiary record is contradictory, not supportive and
noncorroborative. Wood v. Derwinski, 1 Vet.App. 190 (1991),
and Smith v. Derwinski, 2 Vet.App. 137 (1992). We endeavor
to express our findings and determination as to the
veteran's appeal with sufficient clarity to achieve the
critically important purpose of reasonably informing the
veteran of the reasons and bases for our determination.
Sammarco v. Derwinski, 1 Vet.App. 111 (1991).
The evidentiary record has not presented a question as to
which of two evaluations would more properly classify the
severity of post-traumatic stress disorder under Diagnostic
Code 9411 of the VA Schedule of Rating Disabilities.
38 C.F.R. § 4.7 (1991). Post-traumatic stress disorder,
while it has precipitated some hospitalizations, has not
precipitated hospitalizations of such frequency as to render
impractical the application of regular schedular standards,
thereby precluding assignment of an increased evaluation on
an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (1991).
The regular schedular standards which are pertinent in the
veteran's case pertain to the 70 percent evaluation
currently in effect, and eligibility for the next higher
evaluation of 100 percent. 70 percent contemplates not more
than severe social and industrial impairment. This is
substantiated by the evidentiary record. The veteran
suffers from severe social and industrial inadaptability.
Post-traumatic stress disorder has not been shown to have
produced total social and industrial impairment which would
warrant the next higher evaluation of 100 percent. We
observe that the veteran, although suffering from serious
psychiatric symptomatology, has maintained satisfactory
control of his mental faculties and is in total contact with
reality. He articulates well and has no problem
understanding others in his environment. While the veteran
has tended toward social isolation, he is not totally
socially isolated. Post-traumatic stress disorder has not
increased in severity as to allow us to conclude that a
higher rating is warranted. 38 U.S.C. §§ 1155, 5107 (1992);
38 C.F.R. §§ 3.321(b)(1), Part 4, 4.7, Diagnostic Code 9411
(1991).
II. Total Evaluation Based on Individual Unemployability
Due to the Service-Connected Disabilities
Service connection has been established for post-traumatic
stress disorder, rated as 70 percent disabling; and tinea
corporis and cruris, rated as 10 percent disabling.
Undoubtedly, the veteran's psychiatric disability accounts
for his difficulties attempting to maintain steady
employment through the years. The veteran last worked in
1984. He has occupational experience as a shipping clerk
and as a lead man for prefabricated housing. He has a high
school education and did not complete vocational training in
electronics and machinery. He achieved a modest degree of
steady employment; however, he was let go from various jobs
and was soon only able to get part-time employment.
Ultimately he had to discontinue working altogether. We
acknowledge that the veteran's psychiatric symptomatology
has been variously classified to include an antisocial
personality. Our analysis of the evidentiary record allows
us to conclude that post-traumatic stress disorder
definitely accounts for the major portion of the veteran's
psychiatric symptomatology and as such, has significantly
interfered with the veteran's efforts to obtain and maintain
steady employment. As we noted above, the veteran has
required inpatient care to control exacerbations of
post-traumatic stress disorder. The record shows that he
has also required intensive psychotherapy for many years.
It would be unreasonable to expect that the veteran could
obtain and maintain substantially gainful employment.
The possibility exists that the veteran would be able to
work perhaps only a few hours a day or only sporadically.
This does not equate with an ability to engage in
substantially gainful employment. Substantially gainful
employment suggests a living wage. Mere theoretical ability
to engage in substantially gainful employment is not a
sufficient basis to deny benefits. Under 38 C.F.R.
§ 4.16(a) the test is whether the veteran is in the judgment
of the rating board unable to pursue substantially gainful
employment and not whether a particular job is realistically
within the physical and mental capabilities of the
claimant. It is our finding that the service-connected
disabilities, particularly the veteran's post-traumatic
stress disorder, have rendered him unable to perform all
kinds of substantially gainful employment. 38 U.S.C.
§§ 1155, 5107 (1992); 38 C.F.R. §§ 3.340, 3.341, Part 4, and
4.16 (1991).
ORDER
An increased evaluation for post-traumatic stress disorder
is denied.
A total evaluation based on individual unemployability due
to the service-connected disabilities is granted, subject to
laws and regulations governing the effective dates of awards.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
W. H. YEAGER, JR., M.D. JAN DONSBACH
JOAQUIN AGUAYO-PERELES
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.